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Tulsa Law Review Tulsa Law Review

Volume 23 Issue 3

Spring 1988

Oklahoma's Make My Day Law Oklahoma's Make My Day Law

Donna Smith

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Recommended Citation Recommended Citation Donna Smith, Oklahoma's Make My Day Law, 23 Tulsa L. J. 533 (2013).

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RECENT DEVELOPMENT

OKLAHOMA'S "MAKE MY DAY" LAW

I. INTRODUCTION

On April 30, 1987, Governor Henry Bellmon signed into lawOklahoma House Bill No. 15111 which contained the controversial"Make My Day" law.2 This new law expanded Oklahoman's right to usedeadly force to protect their homes from intruders. In addition, the lawprovides immunity from civil liability.3 The law changed hundreds ofyears of self-defense in the home or defense of dwelling law in order toprotect the sanctity of the home. Although Oklahoma's "Make MyDay" law addresses both nondeadly and deadly force, the following dis-cussion of the law will be generally limited to the use of deadly force and,therefore, the defense of justifiable homicide.

II. DEFENSE OF DWELLING-HISTORY AND DEVELOPMENT

A cursory look at the development of self-defense and defense ofdwelling law provides a background for examination of Oklahoma's pre-vious and present law in this area. The doctrines of self-defense and de-fense of dwelling have evolved over hundreds of years. An innocentperson's right to defend himself from an unlawful attack is well estab-fished. The exact boundaries of this right to defend against an attackinside or outside the home, however, are not easily defined. The diffi-culty in defining the limits of self-defense and defense of dwelling reflectsthe innumerable fact patterns under which the issue can arise, as well asthe confusing development of this area of the law.4

1. H. 1511, 41st Leg., 1987 Okla. Sess. Law Serv. 205 (West).2. Id. The bill was nicknamed the "Make My Day" bill early in its history. See Okla. Legis-

lative Reporter, March 20, 1987; 'Home is Castle'BilI Filed in Oklahoma Senate, NEw GUN WEEK,

Feb. 27, 1987, p. 2.3. H. 1511, 41st Leg., 1987 Okla. Sess. Law Serv. 205 (West).4. See Brown v. United States, 256 U.S. 335 (1921). The Court stated that "historical mis-

takes" may be part of the law of self-defense. Id. at 343.

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A. Early English Law

Under the early English law regarding use of deadly force in self-defense, the defender was justified in the use of deadly force only whencommitted in execution of the King's law.5 In other situations when aninnocent person killed another in self-defense, the defender was convictedof homicide but was often automatically pardoned.6 The early Englishlaw of self-defense included the requirement that the degree of force usedby the defender could not be greater than the threat of the attacker asreasonably perceived by the defender.7 The early English law of self-defense further required that a defender was justified in using deadlyforce against an attacker only when he had retreated "to the wall."8

In 1532, England enacted a statute codifying the common law, butfailed to address the duty to retreat.9 Perhaps because the statute wassilent regarding the duty to retreat, confusion still reigned in this area.The English courts split in their application of the duty to retreat underthe new statute. Some courts required an innocent victim to safely re-treat from a murderous attack, while others imposed no such duty.10The law and the courts continued to require, however, that the amountof force used by the defender be proportionate to the force used by theattacker. I I

Somewhat different rules developed with regard to use of deadlyforce to defend one's dwelling. In early England, the castle was seen as asanctuary from danger. The protection it offered was jealously protectedby the law.12 The duty to retreat was not imposed when the defenderwas warding off an assault upon the castle. 13 Early English law reflectedthe high regard for the castle as a refuge. 14

5. Beale, Retreat from a Murderous Assault, 16 HARV. L. REV. 567, 567-68 (1903).6. Id. at 568; W. WALSH, OUTLINES OF THE HISTORY OF ENGLISH AND AMERICAN LAW

373-74 (1923).7. Comment, Criminal Law-Lovers and Other Strangers: Or, When Is A House a Castle?-

Privilege of Non-Retreat in the Home Held Inapplicable to Legal Co-Occupants--State V. Bobbitt, 415So. 2d 724 (Fla. 1982), 11 FLA. ST. U. L. REv. 465, 467 (1983) [hereinafter Castle Doctrine].

8. Comment, Dwelling Defense Law in Missouri: In Search of Castles, 50 UMKC L. REv. 64,66 (1981) [hereinafter Dwelling Defense Law in Missouri].

9. Id.; see also 2 F. POLLOCK & F. MAITLAND, HISTORY OF ENGLISH LAW 478-79 (1968).10. Dwelling Defense Law in Missouri, supra note 7, at 66-67.11. 3 J. STEPHEN, A HISTORY OF THE CRIMINAL LAW OF ENGLAND 12 (1883); 4 STEPHENS'

COMMENTARIES ON THE LAWS OF ENGLAND 38 (W. Winder & L. Warmington eds. 1950).12. See 4 W. BLACKSTONE, COMMENTARIES 223 (1898). In discussing the right of habitation,

Blackstone stated that, "the law of England has so particular and tender a regard to the immunity ofa man's house, that it styles it his castle, and will never suffer it to be violated with impunity ......IdL

13. Castle Doctrine, supra note 7, at 467-68.14. 5 Coke 91, 77 Eng. Rep. 194 (1604); see also Comment, Is a House a Castle?, 9 CONN. L.

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1988] "MAKE MY DAY'" LAW

B. American law

1. Criminal liability for defense of dwelling

American courts and legislatures adopted and codified the Englishlaw in the area of self-defense. The duty to retreat when threatened witha deadly assault was adopted by some states.15 Others adopted whatcame to be called the "true-man" rule holding that retreat was unneces-sary to justify homicide committed in self-defense.' 6

All states, however, adopted the rule that deadly force could be usedonly when the defender believed that death or serious bodily injury wasthreatened.17 Some jurisdictions held that the homicide was justifiedwhen that belief was honest, 18 while other jurisdictions required a rea-sonable belief.19

REv. 110, 114 (1976) (characterizing early English defense of habitation law as allowing deadlyforce to defend any intrusion on the home). The Semayne's Case stated:

That the house of every one is to him as his castle and fortress, as well for his defenceagainst injury and violence, as for his repose; and although the life of man is a thing pre-cious and favoured in law; so that although a man kills another in his defence, or kills oneper infortun', without any intent, yet it is felony, and in such case he shall forfeit his goodsand chattels, for the great regard which the law has to a man's life; but if thieves come to aman's house to rob him, or murder, and the owner of his servants kill any of the thieves indefence of himself and his house, it is not felony, and he shall lose nothing.

Semayne's Case, 5 Coke 91, 77 Eng. Rep. 194, 195 (1604). The two classifications of homiciderecognized in England are reflected in the court's language. For homicide in self-defense, the de-fendant was required to forfeit his goods. Homicide in defense of the home, however, was justifiedand the defendant lost nothing. For a discussion of homicide in self-defense and justifiable homicide,see Green, The Jury of the English Law of Homicid 1200-1600, 74 MICH. L. REv. 413, 428-44(1976).

15. King v. State, 233 Ala. 198, 171 So. 254 (1936); State v. Donnelly, 69 Iowa 705, _, 27N.W. 369, 370 (1886); State v. Cox, 138 Me. 151, -, 23 A.2d 634, 641-42 (1941); State v. Dettmer,124 Mo. 426, _, 27 S.W. 1117, 1119 (1894); State v. Abbott, 36 N.J. 63, _, 174 A.2d 881, 884-86(1961); State v. Jackson, 227 S.C. 271, -_, 87 S.E.2d 681, 685 (1955). An early Alabama courtupheld jury instructions that embodied the rationale behind the duty to retreat. "'In the system [ofself-defense] so established no balm or protection is provided for wounded pride or honor in declin-ing combat, or sense of shame in being denounced as cowardly. Such thoughts are trash, as com-pared with the inestimable right to live.'" Springfield v. State, 96 Ala. 81, _ I1 So. 250, 252(1892).

16. Brown v. U.S., 256 U.S. 335, 342-43 (1921); People v. Hecker, 109 Cal. 451, -, 42 P. 307,313 (1895); Enyart v. People, 67 Colo. 434, -, 180 P. 722, 723-24 (1919); Runyan v. State, 57 Ind.80, 84 (1877); Burgess v. Territory, 8 Mont. 57, -, 19 P. 558, 566 (1888); Willis v. State, 43 Neb.102, - 61 N.W. 254, 258-59 (1894); State v. Grimmett, 33 Nev. 531, 112 P. 273 (1910); Erwin v.State, 29 Ohio St. 186, 200 (1876); Voight v. State, 53 Tex. Crim. 258, 109 S.W. 205, 206-07 (1908);State v. Carter, 15 Wash. 121, 45 P. 745, 746 (1896).

17. 2 F. WHARTON'S CRIMINAL LAW § 125 (C. Torcia 14th ed. 1979).18. See State v. Cope, 78 Ohio App. 429, -, 67 N.E.2d 912, 917 (1946) (taking into account

the particular qualities of the defendant rather than the qualities of a reasonably brave man); Peoplev. Lennon, 71 Mich. 298, 38 N.W. 871, 872-73 (1888) (defendant's weakness should be weighed inhis favor).

19. The reasonableness of the belief must be analyzed under the facts of each case. As JusticeHolmes stated, "Detached reflection cannot be demanded in the presence of an uplifted knife."Brown v. United States, 256 U.S. 335, 343 (1921).

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The American defense of dwelling law often appears to be more anapplication of self-defense principles to attacks on the home and its occu-pants, rather than an adoption of the separate defense of habitation lawthat developed around the English castle."0 While American courts haveadopted the language and rhetoric surrounding the English castle doc-trine, case law reveals that courts often applied self-defense principleswith some modification regarding the duty to retreat.2 1 American courtsand statutes have traditionally maintained the proportionality require-ment so that an occupant of a dwelling could use only that amount ofphysical force necessary to repel an intruder.2 2 Many states adopted stat-utes providing that deadly force could only be used when serious bodilyinjury, death, or certain serious crimes were threatened 3.2 Despite con-fusing language used by American courts, self-defense principles requir-ing threatened harm to the defender or other members of the householdwere often applied to attacks upon the home.

20. See Comment, Is a House a Castle?, 9 CONN. L. REv. 110 (1976) (although courts may usebroad defense of habitation language, decisions are generally based on the doctrine of self-defense); 1W. LAFAVE & A. Scorr, SUBSTANTIVE CRIMINAL LAW § 5.9(b) (1986) (the broad defense ofhabitation rule has generally not been used by courts).

21. An early Vermont court explained defense of habitation by comparing it to self-defense.State v. Patterson, 45 Vt. 308 (1873).

The sense in which the house has a peculiar immunity, is, that it is sacred for the protec-tion of his person, and of his family. An assault on the house can be regarded as an assaulton the person, only in case the purpose of such assault be injury to the person of theoccupant, or members of his family, and in order to accomplish this, the assailant attacksthe castle, in order to reach the inmate.

Id. See also, People v. Ceballos, 12 Cal. 3d 470, -, 526 P.2d 241, 249, 116 Cal. Rptr. 233, 239-40(1974) (mechanical device could not be used in defense of habitation where dweller was not homeand thus not threatened with great bodily harm); Crawford v. State, 231 Md. 354, 190 A.2d 538, 542(1963) (noting the rules regarding the defense of one's dwelling "are generally similar" to self-de-fense principles); State v. Schaefer, 295 S.E.2d 814, 817-18 (W. Va. 1982) (stating where a personlives is their castle while discussing self-defense and defense of family).

22. 2 W. LAFAVE & A. ScoTr, SUBSTANTIVE CRIMINAL LAW § 5.7(b) (1986); see also Bray v.State, 16 Ala. App. 433, 78 So. 463, 464 (1918) (unless the defendant reasonably believed death orserious bodily injury was threatened, deadly force to repel a trespasser was not justified); State v.Ivicsics, 604 S.W.2d 773, 777 (Mo. App. 1980) (deadly force may not be used in defense of habita-tion where personal assault is not likely to cause death or serious bodily harm); State v. Miller, 267N.C. 409, -, 148 S.E.2d 279, 281 (1966) (homicide is not justified if defendant uses excessive forcein defending person or habitation).

23. ARK. STAT. ANN. § 41-508 provides that deadly force may be used in self-defense or whena person "reasonably believes the use of such force is necessary to prevent the commission of arsonor burglary by a trespasser"; GA. CODE ANN. § 26-903 (Harrison 1983) provides that deadly forcemay be used to prevent or terminate an entry made "in a violent and tumultuous manner" so thatthe person believes personal violence is threatened or when the entry is made "for the purpose ofcommitting a felony;" MONT. CODE ANN. § 45-3-103 (1987) and UTAH CODE ANN. § 76-2-405(1978) are similar to the Georgia statute.

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2. Civil liability for defense of dwelling

In addition to criminal liability for the use of force in protection ofthe home civil liability may arise if the defender's conduct was not rea-sonable.24 Under the Restatement (Second) of Torts, deadly force maybe used to prevent or terminate an intrusion when the "actor reasonablybelieves that the intruder, unless expelled or excluded, is likely to causedeath or serious bodily harm ... ,2 Use of deadly force is also privi-leged to prevent a felony of the type which threatens death or seriousbodily injury, or which involves breaking and entering a dwelling.26 Fur-ther, no duty to retreat exists when an attack upon a person occurs in thedwelling.27

The Restatement principles mirror the criminal defense of habita-tion principles. Perhaps for this reason courts have generally held thatthe criminal defense applies as well to a civil action.28 Therefore, if thehomeowner reasonably believes that use of deadly force is necessary toprotect the home or its occupants from a felony or serious bodily injury,civil liability should not attach.

III. OKLAHOMA'S SELF-DEFENSE AND DEFENSE

OF DWELLING LAW

A. History of Self-defense and Defense of Dwelling

1. Criminal liability for defense of dwelling

In Oklahoma, self-defense and defense of dwelling law are quite sim-ilar. No duty to retreat exists whether the attack occurs inside or outside

24. See Annotation, Civil Liability for Use of Firearm in Defense of Habitation or Property, 100A.L.R.2d 1021, 1025 (1965). while the governing principle is reasonableness, each case must bedetermined on its facts. However, "[tihe courts are nearly unanimous ... that a person actingunder the reasonable belief that his home is about to be invaded by an intruder may use a firearm indefense thereof without incurring civil liability." Id. at 1025.

25. RESTATEMENT (SECOND) OF TORTS § 79 (1965).26. Id. at § 143(2).27. Id. at § 65.28. See Evans v. Hughes, 135 F. Supp. 555 (D.C.N.C. 1955) (defendant not criminally liable

on the basis of self-defense is also not civilly liable); Nakashima v. Takase, 8 Cal. App. 2d 35, -, 46P.2d 1020, 1022 (1935) (California's justifiable homicide statute discussed in death action wherecircumstances were sufficient to "exonerate defendant from any civil or criminal liability"); Hamil-ton v. Howard, 234 Ky. 321, -, 28 S.W.2d 7, 10 (1930) (defense of habitation not applicable inaction for damages for assault and battery where defendant followed victim from house and shot him250 yards from house); Smith v. Delery, 238 La. 180, -., 114 So. 2d 857, 858-59 (1959) (defendant'sshooting of fourteen-year-old newspaper boy justified in action for damages because defendant actedas a "reasonable and prudent man in the belief that he and his family were in immediate danger");Anderson v. Jenkins, 220 Miss. 145, -, 70 So. 2d 535, 537-38 (Miss. 1954) (defendant liable fordamages when he shot teen-age trespasser despite prior warning).

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of the home.29 Oklahoma courts' statements of the law of self-defenseand defense of dwelling are often interrelated or identical.30 In codifyingthe law, defense of dwelling was not set out under a separate statute, butwas included within the statutes addressing self-defense and justifiablehomicide.31

Oklahoma's justifiable homicide statute is divided into three sec-tions, each addressing types of situations where deadly force may beused.32 First, a homicide is justifiable to resist murder or a felony uponthe person or upon or in his house if he is present.33 Second, a homicideis justifiable when the defender reasonably believes imminent danger of afelony or design to do great personal harm to him, his family, or servantsexists.34 Finally, a homicide is justifiable when trying to apprehend afelon, to suppress a riot, or to keep the peace.35

The present justifiable homicide statute was in effect in 1914 whenthe Oklahoma Court of Criminal Appeals discussed whether a duty toretreat existed. 36 Self-defense law was applied when the owner of a"joint" shot and killed a man after they argued over a card game.37 The

29. Fowler v. State, 8 Okla. Crim. 130, 126 P. 831 (1912); Mulkey v. State, 5 Okla. Crim. 75,113 P. 532 (1911); Turner v. State, 4 Okla. Crim. 164, 111 P. 988 (1910); Mahaffey v. Territory, I 1Okla. 213, 66 P. 342 (1901), rev'd on other grounds, 13 Okla. 466, 74 P. 901 (1903).

30. See Collegenia v. State, 9 Okla. Crim. 425, 132 P. 375 (1913); Armstrong v. State, 11 Okla.Crim. 159, 143 P. 870 (1914).

31. OKLA. STAT. tit. 21, § 733 (1981) provides:Homicide is also justifiable when committed by any person in either of the following

cases:1. When resisting any attempt to murder such person, or to commit any felony upon

him, or upon or in any dwelling house in which such person is; or,2. When committed in the lawful defense of such person, or of his or her husband,

wife, parent, child, master, mistress, or servant, when there is a reasonable ground to ap-prehend a design to commit a felony, or to do some great personal injury, and imminentdanger of such design being accomplished; or,

3. When necessarily committed in attempting, by lawful ways and means, to appre-hend any person for any felony committed; or in lawfully suppressing any riot; or in law-fully keeping and preserving the peace.

Id OKLA. STAT. tit. 21, § 643 (1981) also addresses the use of force in self-defense:To use or attempt to offer to use force or violence upon or toward the person of another isnot unlawful in the following cases:

3. When committed either by the party about to be injured, or by any other personin his aid or defense, in preventing or attempting to prevent an offense against his person,or any trespass or other unlawful interference with real or personal property in his lawfulpossession; provided the force or violence used is not more than sufficient to prevent suchoffense.

32. OKLA. STAT. tit. 21, § 733 (1981).33. Id.34. Id35. Id.36. See Armstrong v. State, 11 Okla. Crim. 159, 143 P. 870, 872 (1914).37. Fowler v. State, 8 Okla. Crim. 130, 126 P. 831 (1912).

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defendant was convicted of manslaughter in the first degree and appealedalleging error in the self-defense instructions.38 In condemning the in-structions requiring the defendant to retreat, the court discussed develop-ment of the duty to retreat. According to the court, retreat to the wallwas required under the old common law. In America, however, the lawprovided a wall of rights. This wall of rights was always at a defender'sback and thus allowed self-defense without the duty to retreat. 9

In Collegenia v. State,4° the Oklahoma Court of Appeals discusseddefense of dwelling principles as well as self-defense principles. 41 Thedefendant was accused and convicted of killing a peace officer. Evidencerevealed, however, that the attack occurred in or around the defendant'shome, and that the peace officer was not necessarily justified in his as-sault on the defendant. On appeal, the defendant argued that the court'sfailure to instruct the jury regarding justifiable homicide in self-defensewas reversible error.42 The court cited early English authorities andstated that the domicile could be defended from unlawful attack, andthat the defense could consist of deadly force if a felony was threatened.However, the court recognized that deadly force would not be justifiedunless a felony was involved and the danger was imminent.43

Oklahoma's self-defense and defense of dwelling law also requiresthat the defender's belief in danger of serious bodily injury or imminentdeath be reasonable. In Jamison v. State,' the Oklahoma Court of Crim-inal Appeals examined the two views which addressed the defender's be-lief that danger was imminent. Under one view, an honest belief justified

38. Id. at 833.39. Id The court stated:Under the old common law, no man could defend himself until he had retreated, and untilhis back was to the wall; but this is not the law in free America. Here the wall is to everyman's back. It is the wall of his rights; and when he is at a place where he has a right to be,and he is unlawfully assailed, he may stand and defend himself; and cases sometimes arisein which he has the right, when unlawfully assailed, to advance and defend himself until hefinds himself out of danger.40. 9 Okla. Crim. 425, 132 P. 375 (1913).41. Id. at 379-80.42. Id. at 378, 381.43. Id. at 379. The value of human life was recognized when the court stated its view of the law

regarding self-defense and defense of dwelling:The law in its humanity will not justify the taking of life to repel a mere trespass or

invasion of the home without felonious intent or in resisting a nonfelonious assault; but aman who is without fault may repel force with force in defense of his person, habitation, orproperty against any one or many who manifestly intend and endeavor with violence tocommit a felony thereon or therein. In such case he is not compelled to retreat, but maypursue his adversary until he finds himself out of danger, and, if in the conflict betweenthem he happens to kill him, such killing is justifiable.

Id. at 379-80.44. 35 Okla. Crim. 302, 250 P. 548 (1926).

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the killing, but under the other view, a reasonable belief was required. 4

The court indicated that Oklahoma had adopted the majority view re-quiring a reasonable belief. The court stated that "the apprehension ofdanger and belief of necessity which will justify killing in self-defensemust be a reasonable apprehension and belief, such as a reasonable manwould, under the circumstances, have entertained. '46 Although the cir-cumstances are to be considered from the defendant's point of view at thetime of the killing, the killing is justified only if a reasonable man wouldhave believed danger of death or serious bodily injury was imminent.4 7

Therefore, cowardice or unreasonable fear will not justify the killing.48

2. Civil liability for defense of dwelling

The Oklahoma Supreme Court has recognized that criminal self-defense principles may influence the determination of the reasonablenessof a defendant's conduct in a civil suit for wrongful death.49 In a civilsuit, the duty of care owed to the victim must first be determined. Underthe common negligence standard, the defendant may owe the victim an"affirmative duty to exercise ordinary care."50 If the victim is a tres-passer, however, the "applicable test of defendant's liability [is] whetherhis conduct amounted to intentional harm or willful or wanton injury."'5 1

In Foster v. Emery,52 the defender feared more than a simple tres-pass on his property because of past incidents of "prowling and window-peeping."" Even though the trespasser had invaded the curtilage of thehome, the court only discussed self-defense and defense of others. 4 Thecourt found that use of deadly force, unavailable where simple trespass isinvolved, may result in civil liability "only if, in view of [defendant's]'mental state', his conduct was 'so unreasonable and dangerous' as tocharge him with knowledge that his acts would 'in all common

45. Id. at 550.46. Id.47. Id. at 551.48. Id.49. Foster v. Emery, 495 P.2d 390, 394 (Okla. 1972).50. Id. at 392.51. Id.52. 495 P.2d 390 (Okla. 1972).53. Id. at 394.54. Id The curtilage is the area that immediately surrounds the dwelling. While defense of

habitation principles apply to attacks occurring in the curtilage of a dwelling, the defense is notapplicable where no felony is attempted or bodily harm threatened. The trespass must be sufferedand redress sought in the law. Turpen v. State, 89 Okla. Crim. 6, 204 P.2d 298 (1949).

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probability' result in injury."' 55 The court upheld instructions that gener-ally reflected the self-defense principles of Oklahoma's Criminal Code.5 6

B. The New Law as Proposed

On February 12, 1987, Senate Bill No. 122 was introduced to theOklahoma Legislature. 57 The bill as introduced provided that an occu-pant of a dwelling could use physical force, including deadly forceagainst an intruder when the occupant reasonably believed that the in-truder had committed or intended to commit a crime or believed that theintruder intended to use even a slight amount of physical force againstthe occupant.5 8 The bill also provided criminal and civil immunity fromliability.59 This would have been a significant departure from existingOklahoma defense of dwelling law in several aspects: (1) the crime com-mitted in the dwelling would have been reduced from a felony to anycrime or even a suspected crime, (2) the threatened force to justify homi-cide would have been reduced from a danger of death or serious bodilyinjury to any force, however slight, and (3) the defender would have beenimmune from criminal liability rather than having an affirmativedefense.6°

The bill also included a proposal to amend Oklahoma's justifiable

55. 495 P.2d at 394. This conduct would then meet the legal standard of "wanton." Id. at 392-93.

56. Id. at 394-95; see also Thweatt v. Ontko, 814 F.2d 1466 (10th Cir. 1987) (Oklahoma'scriminal law regarding self-defense and defense of others applied in civil suit; defendant's violation ofcity ordinance prohibiting discharging firearms within 600 feet of a residence not negligence per se).

57. S. 122, 41st Leg., Ist Sess. (1987) (as introduced). The bill as introduced stated:SECTION 1. NEW LAW A new section of law to be codified in the Oklahoma Statutesas Section 1289.25 of Title 21, unless there is created a duplication in numbering, reads asfollows:A. The Legislature hereby recognizes that the citizens of the State of Oklahoma have aright to expect absolute safety within their own homes.B. Any occupant of a dwelling is justified in using any degree of physical force, includingbut not limited to deadly force, against another person who has made an unlawful entryinto that dwelling, and when the occupant has a reasonable belief that such other personhas committed a crime in the dwelling in addition to the unlawful entry, or is committingor intends to commit a crime against a person or property in addition to the unlawfulentry, and when the occupant has a reasonable belief that such other person might use anyphysical force, no matter how slight, against any occupant of the dwelling.C. Any occupant of a dwelling using physical force, including but not limited to deadlyforce, pursuant to the provisions of subsection B of this section, shall be immune fromcriminal prosecution for the reasonable use of such force and shall be immune from anycivil liability for injuries or death resulting from the reasonable use of such force.SECTION 2. This act shall become effective November 1, 1987.

58. Id.59. Id.60. Compare S. 122, 41st Leg., 1st Sess. (1987) (as introduced) with OKLA. STAT. tit. 21 § 733

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homicide statute.61 The most significant change proposed that homicidewould be justified when the defender reasonably believed "personal in-jury" rather than "great personal injury" was threatened. Although thebill met with strong opposition during House debate,62 the measurepassed by a vote of seventy to twenty-six.63

Recognizing that existing Oklahoma law adequately provided forself-defense and defense of the home, Governor Bellmon refused to signthe bill.64 Bellmon indicated that several serious issues were raised bythe bill: (1) limitation of a wrongful death action under the civil immu-nity provision violated the Oklahoma Constitution, (2) jury determina-tion of justifiable homicide airs the facts and is preferable to immunityfrom criminal prosecution, and (3) civilized society does not condonekilling when only slight physical force is threatened. Deeply critical ofthe bill, Bellmon stated that "[t]he only people this bill 'makes the day'for are potential murderers and their defense attorneys. "65

C. Changes Under the New Law as Enacted

1. Changes in the criminal law

Although narrower than the vetoed proposal, Oklahoma's new de-fense of habitation law as enacted significantly changes the criminal lawregarding defense of habitation. Under existing statutory and case law,deadly force may be used only when necessary to prevent a felony orwhen serious bodily injury or death is threatened. 66 The new law pro-vides that deadly force may be used against an intruder who has unlaw-fully entered the dwelling as long as the "occupant has a reasonable beliefthat such other person might use any physical force, no matter how

61. S. 122, 41st Leg., 1st Sess. (1987) (Committee Substitute).62. OKLAHoMA LEGISLATIVE REPORTER, at 4-5 (April 10, 1987). Opposition to the bill was

generated by accounts that a similar Colorado law had not had the intended result of protectinghomeowners. Legislators expressed fears that the law would result in "wholesale killing," "openseason on [Oklahoma] citizens," "hot-headed people" getting away with murder, and policemanbeing killed with the killer going free. Id. at 5.

63. Id.64. Objections Resulting in Veto of Senate Bill 122. Governor Bellmon cited Mulky v. State, 5

Okla. Crim. 75, 113 P. 532 (1911) (sic); Adams v. State, 93 Okla. Crim. 333, 228 P.2d 195 (1951);Anderson v. State, 90 Okla. Crim. 1, 209 P.2d 721 (1949); and Terhune v. State, 530 P.2d 557 (Okla.Crim. 1974) for the proposition that Oklahoma's present law adequately provides for self-defenseand protection of the home. The Governor believed the "criminal element of our society" couldabuse the law. Id.

65. Id.66. See supra notes 29-48 and accompanying text.

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slight, against any occupant of the dwelling."67 Should a criminal prose-cution arise "from the reasonable use of such force," the occupant willhave an affirmative defense.6" The affirmative defense is similar to theprevious criminal law.

2. Changes in civil liability

The law as enacted provides for immunity from civil liability for thereasonable use of force under the new standard set out in the statute.69

Oklahoma courts previously determined the reasonableness of an allegedtortfeasor's conduct by considering standards of self-defense as set out inthe Oklahoma Criminal Code.7° However, under the new standard fordetermining reasonableness of conduct, the alleged tortfeasor need onlyshow a reasonable belief that the intruder might use even slight physicalforce.71

While the legislature may lower the standard of what constitutesreasonable conduct, the civil immunity from- a wrongful death actionpresents a constitutional question. The Oklahoma Constitution prohibitslegislative acts that abrogate "[Ihe right of action to recover damages forinjuries resulting in death."' 72 This provision has been interpreted tomean that "the legislature. . . may not withdraw, take away, annul, orrepeal the provisions of [the wrongful death statute], ' 73 and that "theright of action . . . is the right to effectively pursue a remedy."'74 Thisstatute's provision for immunity from civil liability arguably "takesaway" a "victim's right to effectively pursue a remedy" that had existedbefore the statute was enacted. Therefore, the constitutionality of thestatute can be seriously questioned.

IV. RECOMMENDATION

A. "Make My Day" Provision Regarding Criminal LiabilityShould Be Repealed

Oklahoma's previous law provided adequate protection from crimi-nal liability for those who reasonably used deadly force in defense of their

67. H. 1511, 41st Leg. 1987 Okla. Sess. Law. Serv. 205 (West).68. Id.69. Id.70. See supra notes 49-56 and accompanying text.71. H. 1511; 41st Leg. 1987 Okla. Sess. Law. Serv. 205 (West).72. OKLA. CONST. art. 23, § 7.73. F.W. Woolworth Co. v. Todd, 204 Okla. 532, 535, 231 P.2d 681, 684 (1951).74. Roberts v. Merrill, 386 P.2d 780, 783 (Okla. 1963).

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dwelling and its occupants. Governor Bellmon recognized this when hevetoed the initial "Make My Day" proposal. He stated that existing lawoffered adequate protection and that few homeowners were prosecutedfor defending their homes.7"

An inherent tension exists between a person's right to protect thehome, and the sanctity of human life. This tension was reflected in previ-ous Oklahoma law because the homeowner was justified in using deadlyforce when harm was threatened76 but not against a mere trespasser.77

In vetoing the earlier version of the law, Governor Bellmon stated that"allowing killing for slight personal injury is contrary to standards ofcivilized society."' 78 The law as enacted, however, favors the person'sright to protect the home over the sanctity of human life by allowingkilling when "any physical force, no matter how slight," might be used.79

Thus, the new law's omission of any proportionality requirement makesit subject to abuse. For example, a large man could shoot an unarmedperson much smaller and of no physical threat to him whatsoever. Forthese reasons, the portion of the law changing the criminal law regardingdefense of habitation should be repealed.

B. "'Make My Day" Provision Regarding Civil Immunity is aNecessary Tort Reform

Civil immunity from liability provides a homeowner who has beenexonerated from criminal charges with much-needed protection. The de-fendant should be immune from civil liability if criminal charges for theact are not filed or if he is exonerated in criminal proceedings. Underpresent law, the victim may bring a civil suit whether or not criminalcharges have been filed.80 The defender is faced with two potentiallycostly options-the suit may be settled or defended. Because courts lookto the criminal law to help determine the reasonableness of the defender'sconduct, 81 if that conduct has been found to be reasonable under crimi-nal law, the defender's assets should not be threatened with a civil suit.The victim's use of the law creates a lawsuit with nuisance value, forcingthe defender to settle or to pay attorney's fees. Even if such immunity in

75. Objections Resulting in Veto of Senate Bill 122.76. See supra notes 30-50 and accompanying text.77. Turpen v. State, 89 Okla. Crim. 6, 204 P.2d 298 (1949); Hovis v. State, 83 Okla. Crim. 299,

176 P.2d 833 (1947).78. Objections Resulting in Veto of Senate Bill 122.79. H. 1511, 41st Leg. 1987 Okla. Sess. Law Serv. 205 (West).80. See Foster v. Emery, 495 P.2d 390, 391 (Okla. 1972).81. Id. at 394.

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a wrongful death action is found to be unconstitutional, 2 a constitu-tional amendment could cure this problem. Characterized as a tort re-form measure, the "Make My Day" provision providing immunity fromcivil liability should be maintained. However, exoneration from criminalliability should be based on the statutory law and case law in existencebefore the "Make My Day" law was passed.

V. CONCLUSION

The changes effected in the criminal law by the new "Make MyDay" law raise many philosophical questions on the value of human life,as well as many legal questions regarding self-defense and defense ofdwelling law. Because previously existing criminal law adequately pro-tected homeowners and because the new law is subject to abuse, the"Make My Day" criminal liability provision should be repealed. Theprovision of the law that provides homeowners with immunity from civilliability, however, provides needed protection and should remain in ef-fect, but should be based on the criminal law previously in existence.

Donna Smith

82. See supra notes 72-74 and accompanying text.

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